Whitsey v. State

BERCHELMANN, Judge,

dissenting.

In Keeton v. State, 749 S.W.2d 861, 870 (Tex.Cr.App.1988) (opinion following abatement), we articulated the appropriate standard for review of the trial court’s findings in a Batson hearing: viewing the evidence in the light most favorable to the court’s holdings, appellate courts are to defer to the trial court’s findings and conclusions where supported by the record. In the *717 case at bar, a majority of this Court acknowledges this to be the appropriate standard, but yet fails to apply it to the facts of the case. Inexplicably, the majority’s analysis omits much of the evidence supporting the trial court’s determination of a lack of purposeful discrimination. Accordingly, I respectfully dissent.

In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Supreme Court relaxed the evidentiary standard previously articulated in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), by which a criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based upon the prosecution’s use of peremptory challenges to strike members of the defendant’s race from the jury venire. Under Batson, supra, once the defendant makes a prima facie showing, the burden shifts to the State to advance race neutral explanations for the challenges. Id., 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . In the case at bar, the burden shifted to the State upon appellant’s showing that the prosecution exercised peremptory challenges to strike all six of the black veniremembers. Viewing the evidence in the light most favorable to the trial court’s findings, the record clearly supports the conclusion that the State rebutted the presumption of purposeful discrimination. Keeton, supra.

I.

The prosecutor’s voir dire notes provides a most glaring example of the majority's failure to view the evidence in the light most favorable to the trial court’s findings. Specifically, the majority repeatedly treats the prosecutor’s indication of the race of the black veniremembers on the juror information forms as evidence controverting the trial court’s findings. However, at the Batson hearing the prosecutor explained that he marked “B” on the juror information forms not for purposes of peremptory strikes, but rather for purposes of visual placement of the members on the panel. He explained the notations in the following manner:

... it helps a lot just in placing faces and placing jurors, not just placing the minority jurors but when you are sitting in front of a panel with 50 people trying to figure out who juror No. 26 is, frankly, looking at my sheet, I know that Juror No. 26 is two down from the black female that at the time would have been in the third row. That’s pretty much the basis for laying out, I guess, landmarks of sorts in the entire jury panel.

* 5k * * * *

It’d be helpful, more helpful after all the voir dire when I'm sitting up at counsel table when I look up and refresh my memory of faces of what people have done during the voir dire.

Further evidence logically supports the prosecutor’s explanation that the “B” notations were not marked to assist in peremptory strikes based solely on race. Even the majority opinion recognizes that the prosecutor made other notations on several of the juror information forms which were marked with “B.” Professions were circled, unanswered portions of the forms were marked, and veniremember statements made during voir dire were noted. It follows that the prosecutor would not have wasted precious voir dire time making these notations had he been of a mind to automatically exercise his peremptory challenges against the black members of the panel. In any event, it is unquestionable that the trial court could have reasonably treated the “B” notations on the juror information cards as not indicating purposeful discrimination.

Ironically, the majority treats the prosecutor’s notes scribbled on the forms of some of the black panel members as indicia of purposeful discrimination. The majority reaches this conclusion because there were no specific questions addressed to these veniremembers.

“In analyzing this evidence, we first note that the record reflects that the prosecutor did not ask any questions of the blacks on the jury panel whom he struck even though there were items on the jury information sheets relating to those jurors which either concerned him *718 or had been deleted.” At 715 (emphasis in original).

While it is true that the prosecutor did not question the black panel members individually, the trial court's findings state that the prosecutor did not question individually any of the fifty panel members. The record reflects that the trial judge limited the prosecution to forty minutes for both general and individual voir dire and the prosecutor did not, in fact, individually question any juror, black or white, regarding any information noted on the information forms, and that similar notes were jotted on the forms of white venire-members.

Without explanation, the majority fails to address the prosecutor’s reasons for marking “B” on the black veniremembers information forms, opting instead to repeatedly cite this as evidence which controverts the trial court's findings. I find this information insufficient to overcome the deference We are required to give the trial court’s findings. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21; Keeton, 749 S.W.2d at 870 . Moreover, the additional notations on these forms indicate a propensity not to strike a veniremember solely because of race when viewed, as we must, in the light most favorable to the court’s findings. Keeton, supra.

Additionally, the majority unfairly implies that the prosecutor concocted his reasons for exercising peremptory strikes because appellant demonstrated that “the prosecutor spent six to eight hours reviewing the voir dire transcript and that is when he came up with his explanations for his voir dire strikes.” At 716. The prosecutor admitted that he reviewed his notes and the voir dire transcript to refresh his memory; otherwise, he would not have been able to recall the circumstances surrounding this case. The prosecutor answered affirmatively to defense questioning that it was after refreshing his memory that he “came up” with the reasons for his strikes.

The necessity for a prosecutor to go back months, perhaps years, after a trial to demonstrate his reasons for exercising a peremptory challenge is a problem inherent with the retroactive application of Batson v. Kentucky, supra. See Griffith v. Kentucky, 479 U.S. 314, 333 , 107 S.Ct. 708, 719 , 93 L.Ed.2d 649, 665 (1987), (White, J., Rhenquist, C.J., and O’Connor, J. dissenting). See also Allen v. Hardy, 478 U.S. 255, 260 , 106 S.Ct. 2878, 2881 , 92 L.Ed.2d 199, 206-06 (1986). It is unfair to imply that the prosecutor fabricated his reasons simply because he had to refresh his memory twenty-six months after trial. More importantly, it should not be treated as evidence which controverts the trial court’s findings.

II.

Because the majority fails to set out the prosecutor’s reasons for striking each of the black veniremembers, I will individually address each strike to demonstrate the evidence supporting the court’s finding of no purposeful discrimination. Veniremember No. 7, Gloria Mitchell, was the first black panel member peremptorily struck. The prosecutor scribbled on her juror information card “HPD,” “Vice” and “DPS.” The prosecutor testified at the Batson hearing that these notes indicated that Mitchell had friends in the police department and department of public safety, which would normally make her a good state’s juror. However, Mitchell’s responses to defense voir dire questioning, particularly her intonation, left the prosecutor questioning whether she would believe an officer’s testimony. In essence, he was concerned that Mitchell’s connection with some law enforcement officials might predispose her to disbelieve the police witnesses crucial to the case at bar. The trial judge, who presided over the original trial and the Batson hearing, found the prosecutor’s explanation race-neutral. The majority essentially rejects the court’s finding and the prosecutor’s reasoning because the prosecutor did not strike white veniremembers who had friends in law enforcement. In reality, there is ample evidence to support the trial judge’s finding that veniremember No. 7 was not struck in a discriminatory manner.

Next, the State exercised a peremptory challenge against black veniremember No. *719 8, Sherry Ramsey. The prosecutor testified that he probably struck Ramsey because of her husband’s profession. Additionally, he expressed concern about her youth; she was twenty-four year of age. 1 After much questioning, cross-examination and re-direct examination, the prosecutor explained that, in his opinion, nursing is a liberal profession and people involved in nursing are prone to a “social worker’s type attitude.” He felt that because this was a sexual assault case, Ramsey might have been a good juror if she were a nurse. However, he felt that because she married a man who works in a predominately female profession and who is probably a “social worker type,” she would probably not be a good state’s juror. Admittedly, the prosecutor’s logic may be strained, but viewed in the light most favorable to the court’s finding of no purposeful discrimination, this testimony supports the finding of the trial judge, who, by presiding over the trial and the Batson hearing, was in the best position to assess the credibility of the witnesses.

The prosecutor struck veniremember No. 24, Maurine Fuller. On her juror information form, the prosecutor circled Fuller’s occupation of teaching, and noted her failure to fill out whether she served on a prior jury. He testified that he struck Fuller because he viewed teachers to be too liberal and forgiving. The record reflects that the prosecutor also struck the only other teacher on the panel, a nonblack. Despite the trial court’s finding that Fuller was peremptorily struck for race-neutral reasons, the majority concludes that the prosecutor acted “on a group bias not shown to apply to the challenged jurors.” At 715.

In so holding, the majority misapplies a factor articulated by a Florida court for determining whether a prosecutor’s reason for exercising a peremptory strike is a mere pretext for racial discrimination. Slapy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987), aff' d, 522 So.2d 18 (Fla.1988). Under such circumstances, if a prosecutor claims he or she struck a veniremember because of employment, in the absence of other evidence, the reason becomes suspect. In the instant case, the prosecutor struck a teacher who is not black, as well veniremember Fuller, who is black. The lack of disparity in treatment of these otherwise similarly situated veniremembers negates any inference of racial discrimination.

The prosecutor exercised a peremptory challenge to strike Glenda Johnson, venire-member No. 32. He testified that he did so because Johnson indicated that Pentecostal was her preferred religion. This bothered the prosecutor because he believed this to be a “fringe type” religion because they “speak in tongues” and do some things “out of the ordinary.” No other venire-member indicated involvement in the Pentecostal Church. The record supports the trial judge’s finding that this reason was race-neutral.

Additionally, the prosecutor peremptorily struck veniremember No. 37, Willie Lee Hunt, because of Hunt’s involvement in the Church of God, a religion the prosecutor knew nothing about. Hunt was the only veniremember who indicated a preference for this particular denomination. Marked on Hunt’s information card was Hunt’s failure to respond to whether he had been accused in a criminal case. The prosecutor further testified that he could not specifically remember whether he struck Hunt merely because of Hunt’s religious preference, or whether the omitted portion of the information form also was a consideration. *720 This evidence supports the trial court’s finding of no purposeful discrimination.

Lastly, the state exercised a peremptory challenge on veniremember No. 39, Reginald Ardoin. The prosecutor testified that he was concerned that Ardoin was only twenty-one years of age, and that Ardoin’s spelling on the information form was very poor. Specifically, Ardoin misspelled Riverside General as “Riveside Genral” and misspelled his religious preference of Baptist as “Bapaitsm.” The record reflects that Ardoin was the only veniremember under the age of twenty-four. 2 Viewing the evidence in the light most favorable to the trial court’s findings, the record supports the trial judge’s determination of no purposeful discrimination.

For the foregoing reasons, I would affirm the judgment of the court below.

McCORMICK, P.J., and WHITE, J., join this opinion.

. The majority fails to analyze the totality of the reasons that went into the decision to strike particular jurors. Where a prosecutor articulates more than one reason for exercising a strike, the rationale must be viewed looking at the combination of reasons, for any individual reason alone may not have motivated a decision to strike. Regarding veniremember Ramsey, the majority fails to address the prosecutor's combined concerns. Ramsey was both youthful and, in the prosecutor’s opinion, was married to a man in a liberal profession. This combined reason makes veniremember Ramsey qualitatively different from other panel members who may have been only youthful or who may have been married to individuals in a liberal profession. For the majority’s treatment of Ramsey's age, see infra note 3.

. The majority claims that "the state struck two blacks from the venire because they were close in age to appellant but did not strike any of the six white venirepersons who were also close in age to appellant.” At 715. In so doing, the majority ignores the prosecutor’s additional reasons for striking the two, young black venire-members. As previously detailed, the prosecutor was concerned with veniremember Ramsey’s age and her husband’s profession. Venire-member Ardoin was a few years younger than any other veniremember, in addition to his inability to spell. It should also be noted that the prosecutor circled the ages on the information forms of some of the youthful white venire-members, but did not do so on other young white veniremembers. There is evidence in the record to demonstrate that the youth of both black and white veniremembers played some part in the prosecutor’s use of peremptory strikes.